WASHINGTON — Sen. Dianne Feinstein recalls turning on her television and seeing a young Chinese girl crying before a judge, without even an interpreter to help her after surviving a harrowing journey to the U.S.
That was the genesis of a law six years ago that is now at the center of an immigration crisis at the nation’s Southern border. More than 57,000 youths, mostly from Central America, have crossed into the U.S. illegally since October. Fewer than 2,000 of them have been sent back.
Immigration advocates and many Democrats insist on preserving what they describe as important protections in the 2008 law for unaccompanied youths who flee their home countries or are smuggled to the U.S.
Most Republicans and a few Democrats want to change the law to address circumstances far different from six years ago, when no more than 8,000 kids arrived at the border each year without their parents.
“The 2008 law creates a process that made sense when you’re talking about a limited number of children, the victims of sex trafficking. It doesn’t make sense when you talk about 50,000 unaccompanied minors,” said Sen. Lindsey Graham, R-S.C. “The 2008 law wasn’t designed to deal with this situation.”
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Sen. Robert Menendez, D-N.J., countered, “The best interest of the child would be what the law says: Hold them in a safe and clean shelter, rather than returning them to face possible death.”
The dispute has held up congressional action on President Barack Obama’s $3.7 billion emergency spending request for more immigration judges, detention facilities and other resources for the border. Prospects for a compromise are dim, and Congress may leave for its annual summer recess in two weeks without doing anything to deal with the unfolding crisis.
Feinstein’s measure was made part of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, named after an 18th century British abolitionist. It passed Congress with no controversy and was signed by former President George W. Bush without a lot of fanfare.
It codified court-ordered protections for unaccompanied young migrants, and modified a distinction in U.S. policy between the treatment of young Mexican migrants and those from other nations.
Under the law, kids from Mexico and Canada who arrive here without their parents or other guardians must go through an initial screening by Border Patrol agents, who can turn them around quickly unless they demonstrate a fear of persecution back home or meet certain other limited criteria.
Advocates say those screenings are inadequate, and a report by the United Nations High Commissioner for Refugees this summer said Border Patrol agents make the presumption that Mexican kids don’t have protection needs, rather than taking the necessary steps to rule that out.
Youths from other countries, however, are automatically put into deportation proceedings and get an opportunity to make their case before a judge. In the meantime they’re supposed to be handed over to the Health and Human Services Department within 72 hours, and from there released into the least restrictive setting that’s in their best interest — usually the care of family members, who themselves may be in the country illegally.
There, they may wait for years as their case makes its way through the nation’s immigration court system, which has a backlog of more than 350,000 cases. Many never will show up when their day in court does arrive.
In practice they have achieved what they set out to obtain: a new life in America.
“Very, very few are actually being sent back,” Sen. Jeff Flake, R-Ariz., said at a recent Senate hearing on the issue. “The practical effect of our policy is that once a child is placed with a sponsor, it’s extremely unlikely that they’re going to be deported.”
Those circumstances have led Republicans to insist on changes to the 2008 law to allow Central American youths to be treated the same as those from Mexico, so they can be sent home quickly, broadcasting a message to Honduras, El Salvador and Guatemala that new arrivals will not stay. Homeland Security Secretary Jeh Johnson has said he supports such a change.
On the other side are immigration advocates, the Catholic Church and a growing number of Democratic lawmakers, who say many of the youths are fleeing vicious gang violence.
“We’re going to be sacrificing the safety of refugee children in the effort to send a message to the home countries,” said Wendy Young, president of Kids in Need of Defense, who was an aide to the late Sen. Edward M. Kennedy, D-Mass., at the time of the law’s passage.
Feinstein, Menendez and others also have begun to argue that that the law as written allows the administration flexibility to deal with the current circumstances, because it contains a provision for “exceptional circumstances.”
“The process I don’t think is the problem,” Feinstein said. “The problem is what’s at the home of these children.”
But such arguments have gotten little traction with Republicans, who appear ready to insist that the law must change in order for them to sign off on money to address the crisis.
“I don’t know how Congress can send more money to the border to begin to mitigate the problem if you don’t do something about the ’08 law that’s being abused,” House Speaker John Boehner, R-Ohio, told reporters last week. “And it is being abused.”